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Lawsuit Against Election Commissions Expected to be Dismissed

February 28, 2013

by:

Dwayne Page

A federal judge is expected to dismiss a lawsuit filed against the DeKalb County Election Commission and several others in Tennessee brought by former administrators of elections in 2009 who claim they did not get to keep their jobs for political reasons.

In an order filed last week, U.S. District Judge Kevin H. Sharp found that "the position of county administrator of elections is a political position, subject to patronage dismissal."

The case now goes to Magistrate Judge Joe Brown for further review in light of the court's ruling. "The judge's ruling is limited to this party affiliation issue and he has sent the case back to the Magistrate Judge, it appears to decide whether or not there is anything else that needs to be addressed. If not, we expect to see a final order dismissing the case in favor of the election commissions and when that happens the plaintiffs will have a window of time to appeal the court's ruling or portions of it to the sixth circuit court of appeals" said Nashville Attorney John Harris, III, who represents the DeKalb County Election Commission in this case.

Former DeKalb County Election Administrator Lisa Peterson and the other former administrators filed the lawsuit in July 2009 against the defendant county election commissions, claiming that their First and Fourteenth Amendment rights were violated when they were removed from their jobs because of their actual, or perceived, political party association. The former administrators asked the court to order their reinstatement, or in the alternative, order that they receive front pay for a reasonable amount of time. They wanted full back pay and a judgment for compensatory damages and punitive damages and an award for reasonable attorneys fees. Locally, the lawsuit named as defendants the three Republicans on the DeKalb County Election Commission James Dean, Walteen Parker, and Barbara Vanatta.

"The main thrust of the case was that these democratic administrators of elections who were replaced or thought they were being replaced in 2009 all sued claiming that they could not be terminated because of party affiliation being democrats," said Harris in a telephone interview with WJLE. "But this month the federal district judge who has the case issued a ruling that the position of administrator of elections under Tennessee law is one that has sufficient political discretion so that federal law would allow individuals holding that office to be terminated based on no reason other than political party affiliation," said Harris. "We're not saying that's necessarily what happened to Mrs. Peterson, but the court has found that even if that's why she was not reappointed that this would be allowable under federal law because of the political involvement of that specific office in making decisions," said Harris. "According to the court, because of the political discretion of that office it would be permissible for an election commission to either refuse to hire or to refuse to appoint or even to terminate someone based on nothing more than party affiliation," according to Harris.

The defendants' first legal victory in the case came in December, 2010 when U.S. District Judge Thomas Wiseman found that the Republican election commissioners named in the lawsuit in DeKalb and other counties were not subject to liability for monetary damages sought, in either their official or individual capacities as "state actors" or state officials. After Wiseman's ruling, attorneys for the former administrators or plaintiffs filed an appeal to the U.S. 6th Circuit Court of Appeals but the appeal was later dismissed as premature, meaning that more proceedings must have been held at the trial court level before an appeal could be considered at the appellate level.

A Chancery Court lawsuit against the Republicans on the local election commission, filed by Peterson in 2009 prior to the federal lawsuit, was also recently dismissed according to Harris. "This was a case alleging that back in 2009 the election commission violated the Open Meetings Act. But after we got through the discovery phase, taking depositions Mrs. Peterson's attorney voluntarily dismissed that claim," he said.

In the Chancery Court action, Peterson contended that the Republican controlled election commission had violated the Open Meetings Act, State law, and the Constitution of the State of Tennessee "by a majority of its members' meeting, communicating, and deliberating in private, secretly deciding and agreeing to terminate her employment, and secretly deciding and agreeing to appoint a Republican to the position of administrator of elections prior to the April 24th, 2009 public meeting of the commission."

For decades, the local election commission had been controlled by Democrats. But when Republicans came to power in the state legislature in 2009, they also took control of the Tennessee election commission as well as county election commissions across the state

On April 24, 2009, the five member DeKalb County Election Commission, made up of three Republicans and two Democrats met to re-organize and to appoint an administrator of elections. Peterson, a Democrat who had been administrator for DeKalb County since 1998, did not receive enough votes to get reappointed. The vote was 2 to 2 along party lines with the Republican Chairman Walteen Parker opting not to vote. The commission then voted 3 to 2 along party lines to appoint Dennis Stanley, a Republican, to the position.

Chairman Parker explained during the April 2009 meeting that since the administrator position was "open" with a new election commission, Peterson was not being fired, just not re-hired. She added that the administrator serves at the pleasure of the election commission. " I don't look at this as a dismissal, but simply as not a re-hire. The position was open with the new commission and therefore the commission has spoken for Mr. (Dennis) Stanley," said Chairman Parker.

She also denied assertions, during the meeting, that the Republican majority violated the open meetings law. "I would like to go on record as saying there have not been any secret meetings among anybody about what is going on," said Chairman Parker.

Peterson and the other former administrators who filed the federal lawsuit have been represented by attorneys, W. Gary Blackburn and John Ray Clemmons of Blackburn & McCune, PPLC in Nashville.